The weekend took a participatory format, and explored thoughts presented in the workshop’s concept paper. Discussions revolved around key questions, as well as simulations for three ‘threads’ of relevance for hegemony and international law: aquifer resource distribution, virtual water and human rights. My reflections here do not address these three topics, but instead looks at the role of international law in hydro-hegemony theory, and the development of hegemony theory generally.

A History of Hydro-Hegemony Theory

The workshop follows a legacy difficult to follow, which started in 2005 when Mark Zeitoun from King’s College London presented his theory of hydro-hegemony, which led to a paper by Zeitoun and Warner in 2006: “Hydro-hegemony – a framework for analysis of trans-boundary water conflict”. Building upon Gramsci’s (1935) conception of ideological hegemony as a combination of force and consent, that is, compliance with ‘the way things are’ (Lustick 2002), hydro-hegemony theory observes the role of power in transboundary water interaction (TBWI) (state relations over shared water resources). The ‘pillars’ of hydro-hegemony were identified as riparian position, exploitation potential, and the three ‘faces’ of power based on Lukes’ (2005 [1974]) categorisation of power as material (hard) power, bargaining (soft) power and ideational (soft) power. Hard power can be classified as material and based on force, whereas soft power is immaterial and relies on persuasion (Zeitoun et al. 2011: 161).

The following hydro-hegemony workshops further developed the Framework of Hydro-Hegemony, gradually placing less emphasis on riparian position and exploitation potential, and more emphasis on the three faces of power. Thus, in answer to the political question ‘who gets how much water, how and why?’, the hydro-hegemony framework typically holds that this is determined by the most powerful actor. By primarily focusing on interstate relationships, the Hydro-hegemony framework has been traditionally state-centric; a primary criticism of the theory (Lopes 2012; Warner and Zawahri 2012).

The last four workshops have broadened the theme from specifically developing the Framework of Hydro-Hegemony, to focusing on the discourse of “Water Security” in 2010, “Transboundary Water Justice” in 2013 and exploration of “Contesting Hegemony” in 2014. One theme persistently present but never fully explored is the role of international law in hydro-hegemonic arrangements. Debates from previous workshops consequently gave rise to this year’s theme: “International Law and Hydro-Hegemony”.

International law is often considered in hydro-hegemony literature (see Woodhouse and Zeitoun 2008; Daoudy 2008; Zeitoun et al. 2011), however it is primarily discussed as a tool or strategy in countering hegemony, ignoring its active role in solidifying hegemonic arrangements. The place of international law in hydro-hegemony theory is thus yet to be fully conceptualised, leading us to the key aim of the paper: to begin to conceptualise the role of international law in both hegemonic and counter-hegemonic relations over water. Our discussions resulted in the following, preliminary figure, to help understand the (counter)hegemonic dimensions of international law:

A Conceptualisation of International Law and its Role in (Counter-)HydroHegemony

In this figure, we understand international law as soft power, which manifests in different dimensions of the international legal regime. We distinguish these dimensions as the content and structure of international law, which embodies bargaining power and ideational power respectively.

As a repository and creator of ideas, it is a tool and actor in ideational power; as an author of international ‘rules’, it is a tool and actor in bargaining power. As such, international law wields significant soft power – and thus influences hydro-hegemonic relations – even when it does not carry with it a strong global police force with hard power (Daoudy 2008).

The content (principles and provisions) within specific bodies of international law through treaties and custom are represented by the arrows, pushing down on either side of the ‘international playing field,’ and can thus be leveraged to level or unbalance the playing field accordingly. In the concept paper, we recall bargaining power as

the ability to control the “rules of the game” (Zeitoun and Warner 2006: 442), influencing the agenda, and determining what is and is not on the negotiating table. Appeals to international law are a component of this second dimension of power, and is often used to legitimise state practice (Dellapenna 2003). So, too, is the ability to create, write, and influence international law. This power is held by academics and lawyers in the drafting of articles; activists, corporations, and civil society leaders in their campaigns, and States themselves through their participation in the UN General Assembly and Security Council.

Thus, the figure indicates that the availability of certain provisions within the authority of international law can provide states with the legal arguments to achieve their interests, whilst other provisions may work against these interests. The figure, perhaps erroneously (see below), suggests that there is a binary between certain principles that can be leveraged for hegemonic versus counter-hegemonic purposes.

In contrast, we suggest that the structure of international law (represented by the thick border around the figure) manifests as ideational power, which the concept paper summarises as

the capacity to create, uphold, and destroy narratives, perceptions, and knowledge (rooted in Foucault’s (1980) understanding that power is inseparable from knowledge). International law reflects and reproduces global discourses on issues, which influence domestic debate and policy-making (Cortell and Davis 1996). It shapes and perpetuates norms of behaviour.

Notably, ideational power is immensely powerful in its ability to procure consent. In the Gramscian sense, this consent is “secured by the diffusion and popularization of the world view of the ruling class” (Bates 1975: 352). We identify the parameters and structure of international law as defined through its requirement for territorial sovereignty and assumptions of equality; that is, the de jure notion of sovereign equality versus the de facto politico-economic hierarchy of states. Accordingly, “buying in” to the rules of the game, through the acceptance of and engagement with international law, is to consent to the hegemony of the Westphalian imperialist system. We discuss an expression of this ideational power through the ‘sovereignty paradox,’ whereby the structure of international law forces non-hegemons to engage in sovereignty arguments in defence of hegemonic domination., which in turn upholds and reinforces the very structures that enable its existence as a governing concept:

With the nation-state as the supreme actor in international legal relations, it is sovereignty which gives states the ‘legal personality’ necessary to engage with international law and make agreements with other sovereign states (Crawford 2012). Fundamentally, its purpose is to ensure States’ independence from the interference of foreign powers and ensure States’ exclusive jurisdiction and supremacy over its own territory (Steinberger 2000). … Thus it has been a post-colonialist trend for developing states to reassert their sovereignty, in particular their sovereignty over natural resources, in an effort to assert their independence through self-determination (Majinge 2008; Pahuja 2013). ….Furthermore, the claim to sovereignty puts developing states on an equal legal footing next to even the most powerful nations, since international law is underpinned by the notion of “sovereign equality” (UN Charter, Article 2).Consequently, while authoritarian behaviour has been traditionally backed by sovereignty (Cannady and Kubicek 2014), a ‘sovereignty paradox’ ensues while it is simultaneously asserted as a counterhegemonic strategy against authoritarian behaviour. These issues are challenged both legally and normatively as many ‘peoples’ do not have their own contemporary nation-state, and the concept of sovereignty is increasingly used for both hegemonic and counter-hegemonic leverage between and across a variety of actors.

This concept paper and the resulting figure is our first attempt to understand the role of international law in countering or reinforcing structures of hegemony. We held in the paper that the current hegemonic structures of international law is upheld though ideational power, while the tools within international law can be used to leverage more immediate aims through bargaining power. This led us to ultimate question for the Eighth Workshop on Hydro-hegemony: can the tools contained within international law be used in a way that can pierce, reshape, or dismantle its hegemonic structures, in order to move toward a more just and equitable system?

HH8: Reevaluating our Understanding

We used the ideas and the figure presented in the paper as a basis for discussion during the Eighth workshop on hydro-hegemony. Whilst previous workshops had the tendency to adopt a conference style arrangement, the Eighth workshop sought to shake up the structure with a participatory format in order to generate new ideas from new faces. The result forced a severely critical look at where understandings of hydro-hegemony theory currently are, strongly suggesting a reevaluation of our preconceptions, and ideas presented in the concept paper.

Why are we still stuck on State-centric conceptions of hegemony?

Hydro-hegemony theory from the outset has been criticised for its state-centric outlook, relying upon ‘Realism’ within international relations theory. This perspective assumes that States are the most important actors in an anarchic international system, and in general strive to pursue self-interest. The influence and power of non-state actors across various domains and governance scales has since been recognised (see Warner and Zawahri 2012 outlining the soft power of non-state actors such as NGOs, epistemic communities, and policy entrepreneurs). Yet, it is an issue lacking consideration in this year’s workshop and concept paper, compounded by the theme of international law, which has its own issues with state-centricism.

As outlined in the concept paper (see Section 2.2.5.), international law is underpinned by the Westphalian concept of sovereignty in which nation-states are the supreme actor. On a conceptual level, it neatly fits in with the hydro-hegemony framework as an instrument of soft power that can be used by states in their interactions over water. However, when talking about the the reality of power and influence in transboundary water governance, the theoretical ‘legal personality’ of actors under the strict scope of international law is hardly relevant. As discussions in the workshop highlighted, the state-centric discourse surrounding international law merely exacerbates the hegemonic idea that international law is a framework of social organisation held exclusively for the participation of states (see D’Souza 2002). That is, to continue arguing that non-state actors can’t use international law both reinforces the parameters of international law (which should be recognised is not static but constantly evolving as a product of society), and also fails to recognise the power of non-state actors (from those who are marginalised to those with huge voices, such as multinationals).

The world is moving beyond nation-states as the supreme actor in global affairs, and theory is not necessarily catching up to try and understand this. This in turn dooms international law to its current state which is arguably becoming increasingly irrelevant in dealing with today’s issues. The role of non-state actors in the international legal system is recognised (see d’Aspremont 2011), and should accordingly be integrated into multi-scalar discussions of hydro-hegemony.

Are we limiting ourselves with negative connotations of hegemony?

A critical point was made by Clemens Messerschmid in the opening plenary of Day 2: why do we look at hegemony as always being a negative arrangement?

The point is important, especially if we are to explore the notion of ‘counter-hegemony’ seriously. The Gramscian understanding of hegemony was not thought of as intrinsically negative. In fact, Gramsci built on the theory to counter the Italian Fascist regime of the time, holding that hegemony itself could be cultivated to break the dominant, oppressive hegemony. That is, breaking the consent (values of the dominant class seen as ‘common sense’ by all classes) of the oppressed would break the ‘negative’ hegemony. In turn, that consent (the construction of alternative common sense, through coercion) could be transformed into a ‘different’ hegemony, but expressed in a more positive state of affairs. In this sense, hegemony is understood as the method behind which social order is maintained, not the substance of that social order.

Based on this, is the use of the term ‘counter-hegemony’ confusing? Counter-hegemony (a proactive endeavour seeking transformation) has been distinguished from resistance (reactive, non-strategic action). Thus, the term implies overturning a current hegemonic order, rather than just pushing against or challenging it. Whilst a strategic process of counter-hegemony would involve creating an alternative replacement, there is little theoretical consideration of what this would look like in the hydro-hegemony literature (with the exception of Cascão 2008, 2009). If hegemony is a theory behind what maintains social order, does counter-hegemony imply that anarchy is its replacement? Does it mean ‘levelling the playing field’ by reconfiguring power dynamics, or would it be quantified by equitable, distributive outcomes? Or, is counter-hegemony simply adopted to replace hegemony with another hegemony sought by those pursuing it? Accordingly, is counter-hegemony always desired? (See Zeitoun et al. 2014)

The workshop highlighted this confusion, with counter-hegemony used interchangeably with resistance, and little input to the overarching question: so the international legal system is hegemonic – so what? What replaces it? How? There certainly needs to be more clarity and common understanding, and the use of complicated theoretical concepts that remain almost entirely within the academic sphere is at least partially to blame.

But more importantly, Clemens’ reflection highlighted a pertinent issue: hydro-hegemony itself is too often used as a moral measure of ‘good’ and ‘bad’ outcomes. Surely it is instead a useful tool that can be used to deconstruct and understand hydropolitics to a deeper level. The moral evaluation is something that should perhaps come afterwards, framed by a different, more relevant theory (such as ‘justice’?).

Are we losing sight of the meaning of hegemony, by using it as a synonym for power?

A key outcome of the workshop in response to the Figure presented in the concept paper was the way in which it presents the bargaining power aspect of hegemony as binary forces pushing against each other. This is an important observation of the image’s message, since it lead to the assumption that (a) hegemony is equal to power asymmetry, and (b) a level playing-field is the ultimate aspiration.

(a) Hegemony = Power?
The point that hegemony is often used synonymously with power asymmetry is critical. The misunderstanding erodes the meaning of hegemony as an order that has been established through force and consent. Power is a vital component of this, but it is not hegemony’s defining aspect. Figures 1 and 2 show the original and revised conceptions of hydrohegemony as being held up by ‘pillars’ of both power (material, bargaining and ideation) as well as context (riparian position and exploitation potential).

As with these Figures, the Figure presented in this year’s concept paper represents bargaining power as a component of hegemony along with ideational power embedded the structures of international law. It is thus intended to represent the elements that amount to hegemony as a whole, rather than those component parts representing hegemony in themselves (making hegemony synonymous with power). However, the confusion makes a valuable point about what the image is trying to communicate. How is the context represented in our new figure?(b) The level playing-field assumption
Having the bargaining power of legal provisions pushing at two ends of a ‘balance’ is problematic. Whilst it obviously, visually restricts consideration of more than two actors in TBWI, the workshop discussions highlighted two key points. Firstly, representing bargaining power in this way assumes that there are inherently ‘hegemonic’ and ‘counter-hegemonic’ legal provisions that can be leveraged. This idea was rejected, with more agreement that the provisions’ use has more influence than the nature of the principles themselves. Again, the binary suggests a dichotomy between ‘good’ and ‘bad’ hegemony, whilst also suggesting that power=hegemony.

Suggestion by Mark Zeitoun that the use of a balancing scale assumes equality, and that the structure of international law / realities of structural inequality should be visualised in the “playing field” itself

Secondly, the ‘balance’ itself infers an assumption of structural equality between actors. Despite the assumption of equality being a central observation in the paper as contributing to the hegemonic structure of international law, a ‘balance’ with a central ‘pivot’ allows power to be utilised by either actor equally in order to shape the outcome. Consequently, the Figure does not consider the geographic and political context that are represented in Figures 1 and 2 above.

Finally, it was questioned as to whether a ‘level playing-field’ is the ultimate aspiration as suggested by the Figure, and whether hydro-hegemony theory even prescribes aspirations at all. It goes beyond trying to understand the role of law in hydro-hegemony, and reinforces the state-centric claim-counter-claim culture of international law, which is just one aspect of its complex dimensions. The representation of a ‘balance’ is intended to be descriptive of the claim made by international law (that states are formal equals). The figure tests that claim and is thus useful for analysis. That the ‘balance’ is taken to be presumptive and leading is something that needs more thought by us, the authors, in our communication of the conceptual image and the purpose it serves.

Is international law really only concerned with ideational and bargaining (soft) power?

Another recurring theme throughout the workshop was the influence and impact of resources in the successful use of international law, and its impact on hydro-hegemonic relations. In other words, weaker states are vulnerable to the dominant administrative advantage of states with abundant resources, including good lawyers who can utilise the law more effectively. Owen McIntyre specifically stressed that the easiest remedy the ‘international community’ can provide to ‘level the playing-field’ is to provide funding for independent technical experts to support negotiations, rather than re-writing laws. This observation reveals that it is perhaps false to assume that international law is only concerned with bargaining and ideational (soft) power, as we suggest in the concept paper. The role of resources as a contextual hard power element should therefore be given much more consideration.

Suggestion that resources (economic, legal and administrative capacity) influence the balancing of the “playing field” through material (hard) power

Thanks to Mark Zeitoun and Mia Tamarin for their helpful comments on this post.

HH8: Outputs

The Workshop Proceedings for HH8 will be distributed by the end of November 2015.

The concept paper is the basis for several upcoming publications. We therefore welcome comments while it is in its draft form (send to info@lwrg.org).

Visit the Workshop’s webpage for more information and up to date outputs.